A Fair User's Manual

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A Fair User's Manual

Know your rights before the copyright cops read them to you

The story's always the same: A media giant slaps a small fry with a cease-and-desist order, citing copyright infringement. In defense, the small fry yelps, "Fair use!" But what does that really mean? Ask a hundred lawyers and you'll get a hundred different answers - fair use can be as malleable as obscenity. Crossing the line could earn you a $150,000 fine, no matter how funny that Family Guy WAV file on your homepage is. Thanks to the 1976 US Copyright Act, federal judges decide whether your use of someone else's material is fair or foul. The courts ask four key questions:

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1. Is the use transformative? The court considers how the material has changed, if at all. A blogger who annotates a Dick Cheney quote is in the clear; one who merely reprints a news article is not. Parody is also protected. 2 Live Crew's "Pretty Woman" borrows the opening riff from the Roy Orbison tune. In 1994, the Supreme Court ruled that the rap song didn't infringe on Orbison - it poked fun, and the borrowed element was only enough to "conjure up" the source. Parody also let Al Franken incorporate Fox News' motto into the title of his book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.

2. What's the nature of the copyrighted work? Facts can't be copyrighted, so a Web site can probably get away with reprinting an account of, say, the diet of a minke whale. If the account hasn't made its way into a journal or other fact-heavy tome, though, that use may not be fair; courts reason that the use of unpublished material kills its creator's chances of ever making a dime. Same with educational versus commercial uses. Nonprofit educational uses are OK, but when Kinko's starts to make a killing off photocopying fees, courts start to wonder. As for online course packets, nobody's really figured that out.

3. How much did you change? The teensier the content chunk, the more likely its use is kosher. That's the de minimis defense, a popular tactic that says a sliver is too small to qualify as infringement. But size doesn't matter if a court finds that the excerpt is the "heart" of the original. A few pilfered notes can land a sample-happy producer in hot water if a judge believes those notes are the essence of a song (and the new version isn't a parody, natch). In 2000, Lucasfilm sued Dr. Dre for filching the THX sound check; the suit was settled, and Dre hired a musicologist to avoid any future entanglements.

4. What's the effect on the market? Diminish demand for the original work and you're asking to be sued. An unauthorized fan book about a sitcom may seem innocuous, yet courts have ruled that such works adversely affect the market for authorized material. But proving economic harm is tough. Earlier this year, the Ninth Circuit Court of Appeals ruled against a photographer who objected to thumbnails of his pictures showing up in a search engine's results. The photographer's potential customers were unlikely to settle for tiny JPEGs, it said. And in 1984's famous Betamax decision, the Supreme Court held that video recording primarily time-shifted TV programs, which didn't mess with Hollywood's profits. The decision helped launch the VCR revolution, and it's still Citation Number One when Big Media tries to put the kibosh on newfangled recording devices.

Even if the answers tip in favor of the accused, a favorable verdict isn't guaranteed. Courts ask an unofficial fifth question: Is the defendant a good guy or a bad guy? "It's called the slimeball factor," says Thomas Field of the Franklin Pierce Law Center. "You've got to account for the judge having his finger on the scales to nail the slimeball and help the little old widow." Or the big media conglomerate.